III. Gaps in the Right to Due Process

“I have stayed here for five years, and have not seen a plaintiff, and have not seen a judge. The court has not called the case. The attorney general doesn’t know the law. The police don’t know the law.”

–Remand prisoner, Aweil Central Prison, April 15 2011.[85]

One of the most pervasive sentiments among prisoners in South Sudan is frustration with the unknown, with prisoners left perplexed and wondering: why was I brought here, when will I go to court, what is my conviction, when will I be set free? While it may not be surprising that those incarcerated believe that they have been unfairly deprived of their liberty, there is evidence that such sentiments are well justified. In South Sudan, it is not unusual to wait over a year before going to trial, and legal aid is almost totally absent. Customary courts sentence defendants without clear jurisdiction over criminal cases. Indeed, arrests, detentions, and prosecutions may be so flawed as to render continued incarceration arbitrary, in violation of human rights law.[86]

Unnecessary or unlawful deprivation of liberty is a concern that the government of South Sudan needs to urgently address. While training and capacity building are important long-term objectives, the new nation should take certain immediate measures to remedy existing weaknesses. It should implement to the fullest extent possible domestic laws governing pre-trial detention and the provision of legal aid and adopt key legal reforms to clarify and limit the jurisdiction and sentencing power of customary courts. 

Extended Pre-Trial Detention

International law requires that pretrial detention be “an exception and as short as possible”[87] and that defendants be tried “without undue delay.”[88] In South Sudan, suspects may wait in prison for long periods before their investigations are complete and before trials commence. Partially completed trials can drag on due to adjournments, missed court dates or the absence of key witnesses. Under domestic law, the total period of pre-trial detention should not exceed six months, except with the consent of the relevant Court of Appeal, but this limit is often not respected.[89] Official figures put the figure of inmates on remand at 30 percent of the total number of inmates.[90]

Remanded Pending Investigation

Individuals arrested on suspicion of having committed an offense are detained pending criminal investigation or the filing of charges, usually in a police cell.[91] Criminal suspects have a right under international law to be brought “promptly before a judge,”[92] and South Sudan’s Transitional Constitution prohibits police from holding them more than 24 hours without producing them in court.[93]

South Sudan’s rule-of-law institutions are yet to introduce procedures to fulfill these rights. There is insufficient knowledge among police, prosecutors, and judges of this “24-hour rule” which was introduced by the Transitional Constitution in July 2011 and conflicts with the 2008 Code of Criminal Procedure, which allowed prosecutors to approve detention for investigation up to seven days.[94] A circular from the Chief Justice clarified that the constitution prevails and called on judges to regularly visit prisons and police detention centers to monitor detention periods,[95] but Human Rights Watch found little evidence that this is taking place.

Without a timely initial appearance, detainees are not able to ask for release pending trial. South Sudanese law does provide for release on bail or on execution of a personal bond,[96] but justice authorities rarely use it.[97] Human Rights Watch’s research suggests that most defendants are unaware that bail is a legal option and lack legal advice on how to apply for release. Under international law, detention before trial should only be used to the extent that it is necessary “to prevent a person arrested on a criminal charge from fleeing, interfering with witnesses or posing a clear and serious risk to others.”[98] Absent an appearance, judges are unable to adequately consider whether there are grounds to necessitate continued detention, or whether conditions are met for bail.[99] Even when judges do approve continued detention, they do so on the basis of a detainee’s paperwork alone, rather than an in person appearance of the suspect. Indeed, a police officer in Juba explained that detainees are only physically taken to court if they make such request.[100]

Judicial oversight of remand detention should begin with the initial appearance and extend over the entire pre-trial period. When a prisoner is on remand pending investigation, a judge must approve his continued detention every week, up to a maximum of three months. If detention exceeds three months, the law requires that approval be sought from the Court of Appeal.[101] Human Rights Watch examined remand records in all prisons visited and found that renewals are not occurring in accordance with these provisions of the Code of Criminal Procedure.

Human Rights Watch met many prisoners who said they spent over a week in a police station, and were then transferred to prison, where they continued to wait, often for months, before the investigation of their case was complete. Authorities attribute such delays to insufficient training, the lack of investigative officers, or the absence of the prosecutor, whose responsibility it is to supervise investigations.[102] With limited funds, communication abilities, and sometimes a lack of transportation, police confront practical hurdles in completing investigations, especially when a crime occurred far from where a criminal suspect is being detained. One police officer in Wau explained that an investigator may travel to a rural area to gather evidence and record statements for a murder investigation, only to return without locating the witnesses, or even the victim’s family.[103] Even considering these challenges, investigations are not always completed as quickly as they could be. As one officer in Juba admitted, “[s]ometimes investigators are negligent and do not do their work.”[104]

Remanded Pending Trial

Following the completion of a criminal investigation and the filing of charges, a suspect’s file is transferred to the relevant court, and the suspect is usually taken to prison to await trial.[105] The total period of remand pending trial should not exceed one month, but Human Rights Watch’s research suggests that it regularly does.[106] Prisoners may languish in prison, sometimes for years, as their trials proceed at a snail’s pace. Under domestic law, a judge should continue to renew detention warrants weekly, and prison directors have a responsibility to ensure this occurs.[107] Human Rights Watch observed that the warrants for many remand prisoners had long expired.[108]

Officials in the justice sector complained that judges are often away on holiday or for training; sometimes they are called to Juba or transferred to another location. When judges are absent, a backlog of cases builds. In Northern Bahr el Ghazal state, Human Rights Watch was told in April 2011 that there had not been a sitting of the high court in six months as its president was abroad receiving medical treatment.[109] Both Western Bahr el Ghazal and Unity states have only one high court judge, leaving all murder cases in each state to be handled by a single individual.[110]

Even once a trial has begun, it may continue indefinitely with repeated adjournments, leaving inmates bewildered. Parties may fail to appear in court. In some cases, proceedings may take place far from where the crime occurred, and victims or witnesses may be simply unable to attend because there is no available or affordable transportation, or because attending would require them to walk long distances by foot. As there are no effective systems for communicating with or summoning witnesses, they may have no idea their presence is required. Sometimes even prisoners miss their own trial dates because the police or prison administration fails to ensure that they make it to court. The disorganization of prison and court records or the failure of the prosecutor to present all necessary evidence to the judge may also slow down a trial.

One male inmate recounted that in the last year and a half, he had made five trips to Wanjok county court, yet his trial has still not commenced as the family of the woman he is accused of killing has repeatedly failed to appear.[111] Another remand has been in Wau prison for over five years and has made an astounding 17 unproductive trips to court –each time there is no plaintiff, no police officer or no judge, and on one occasion, none of the above was in court.[112] A young woman in Wanjok interviewed by Human Rights Watch said that the witnesses against her seem to have realized that if they do not show up in court, she will remain in prison indefinitely.[113]

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Unnecessary and extended pre-trial detention contributes to overcrowding and imposes significant financial costs. Increasing the use of bail would both free up space and save resources. Police, prosecutors and judges should work together to ensure that pre-trial detainees appear in court within 24-hours and are informed of their right to apply for bail. Bail should be granted when required conditions are met. Judges should exercise oversight over pre-trial detention, renewing detention orders weekly as required by law, and releasing people if they are on remand in excess of the legal limits.

Absence of Effective Legal Aid

The overwhelming majority of individuals in prison –an estimated 95 percent according to the Ministry of Justice–make their way through South Sudan’s criminal justice system without counsel.[114] In all of the prisons Human Rights Watch visited in South Sudan, nowhere did researchers meet more than one inmate who had had contact with a lawyer, except in Juba where only four of the 49 prisoners interviewed had lawyers. Out of 41 prisoners researchers spoke with in Bentiu, only one had counsel.

Given high illiteracy rates and low education levels, without legal aid, most prisoners are unable to follow the status of their case or to effectively participate in their trial. It is difficult for them to understand and challenge the evidence presented against them or to call and prepare witnesses in their defense, and almost impossible for them to contest a forced confession or seek redress for torture or mistreatment by police. Most defendants are also unable to advocate for bail or for a reduced or non-custodial sentence.

Legal defense is especially important for those charged with crimes that carry heavy sentences. “The people who have killed need lawyers; this is their right,” insisted an administrator of Bentiu Prison.[115] In South Sudan, defendants accused of murder may be convicted and sentenced to death without any legal assistance.[116] Seven inmates on death row told Human Rights Watch that they had acted in self-defense, that the killing was accidental, or that they were not even present when an incident occurred. Without counsel, none were effectively able to present and argue these defenses in court.[117]

Those who are convicted have the right to file an appeal, but few are able to exercise it without counsel. The Prisons Service Act and standing orders require the prison administration to assist every convicted prisoner to file an appeal, and in some cases this occurs.[118]  These interventions, written by prison staff who do not receive legal training, although called an appeal, are really that in a name only. They are not based on an analysis of the court judgment or trial transcript, or of the judge’s legal or factual findings; rather they are a brief pleading to re-examine the case. One typical appeal seen by Human Rights Watch was titled “Complain of the Sentence” and stated simply “I am requesting your good office [the Court of Appeal] if you could kindly take serious step for my case. So that I would be out from the prison. Because I am innocent of the case in which I was sentenced of.” Filing such a plea can result in a review of the conviction by a higher tribunal, however, while helpful, the assistance provided by the Prisons Service is no substitute for nor does it satisfy the right to counsel or the right of convicted prisoners to appeal.

South Sudan has not made sufficient progress towards fulfilling the right of those facing criminal charges to legal aid under international law, which requires that detained individuals who cannot afford an attorney be assigned legal counsel by a judicial or other authority without payment.[119] A directorate of legal aid and human rights was established within the Ministry of Justice in 2006, but has provided legal aid in a total of only six cases.[120] There is currently no functioning system for the provision of legal aid, and no steps have been taken to educate defendants of their right to counsel.[121]

The domestic legal framework does not sufficiently guarantee access to free legal counsel for those without means. The constitutional right to free legal aid is limited to those charged with a “serious offense.”[122] The Code of Criminal Procedure requires defendants desiring legal aid to personally make an application to the Minister of Justice in Juba.[123] As defendants lack understanding of the role of defense counsel, are unaware of the right to legal aid, and do not know how to apply for it, few are able to file requests, meaning that in practice, the right to counsel is elusive.[124] While in some cases judges have applied for legal aid on behalf of defendants, they have no legal obligation to do so.[125] Judges routinely proceed to hear cases in the absence of defense counsel. The result is that most of those convicted cannot be said to have received fair trials.

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The Ministry of Justice should take steps, in collaboration with the Bar Association, to implement an effective legal aid scheme across South Sudan. All prisoners sentenced to death, children, and prisoners with mental disabilities should be provided counsel and the right to appeal as a matter of priority.

Imprisonment by Customary Courts

As arbiters of rights and disputes, under international law, customary courts must guarantee individuals who seek justice before them the same rights they have in the statutory system. In its Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, the African Commission states that traditional courts “are required to respect international standards on the right to a fair trial.”[126]

Lack of Sufficient Monitoring and Independence

In the determination of criminal charges against them, defendants have the right to be tried by an independent and impartial tribunal, established by law.[127] In South Sudan, customary courts are not part of the official state judiciary, and there is no specific reference to them in the Judiciary Act. While the power of each chief to adjudicate disputes should be defined and delegated by the judiciary, in practice, there has been no formal conferral of powers.[128] The judiciary also does not sufficiently monitor customary courts’ exercise of judicial functions.

In their current structure, customary courts are more closely linked with the executive branch than they are to the judiciary, which raises concerns about their ability to be independent.[129] They are established and regulated by the Local Government Act and are administered by the local government at the county level.[130] Many chiefs who hear cases take on judicial functions while at the same time holding executive authority within the local government.[131] The Local Government Act provides that the president of a county-level customary court is “answerable to the County Commissioner for the performance of the Court.”[132] Customary court fees and fines are revenue for local government councils.[133] County commissioners furthermore have the power to remove members of customary courts.[134] This structure makes them vulnerable to political influence. Indeed, one high court judge complained that county commissioners sometimes improperly interfere with proceedings before customary courts.[135]

Unclear Jurisdiction

The right to be tried by a competent tribunal requires that the tribunal’s jurisdiction be defined by law and that those exercising judicial functions have the appropriate training.[136] The jurisdiction of customary courts, however, is far from clear. The Local Government Act states that in general, customary courts “shall not have the competence to adjudicate on criminal cases.”[137] At the county level, customary courts can hear “criminal cases with a customary interface,” but only when such a case is referred by a statutory court.”[138] The sentencing power of customary courts is sometimes understood to be six months in prison or 150 pounds (approximately $51).[139] Customary courts at county, payam, and boma levels, however, all regularly hear criminal cases, including murder, and regularly impose sentences far exceeding six months.[140]

Another concern is the chiefs’ lack of legal training. In criminal cases, customary courts will cite to and apply a handful of provisions from the Penal Code. Yet chiefs have no training in statutory criminal law and little, if any, knowledge of the related procedural and evidentiary rules. Individuals convicted by customary courts for violations of the Penal Code therefore cannot be said to be convicted, “in accordance with procedures prescribed by law,”[141] as required by the Transitional Constitution and international law.

The variety of customary sanctions also raises human rights concerns. Some clearly violate international law and should be immediately halted, such as the compensation of murder with the exchange of a girl child, which is practiced in some areas of Eastern Equatoria state.[142] Customary courts may apply corporal punishment, also at variance with international standards and South Sudan’s domestic law.[143] Human Rights Watch also saw cases in which a customary court had imposed two rounds of sanction for the same crime, appearing to violate the prohibition against double jeopardy.[144]

Customary Crimes not Covered by the Penal Code

Customary courts sentence people for crimes that do not exist in the Penal Code or in any written form. International law requires that crimes be adequately detailed in the law, encompassing the principles of legal certainty and foreseeability.[145] The African Charter prohibits the infliction of penalties “for an offence for which no provision was made at the time it was committed.[146]

While there are continuous debates in South Sudan about whether customary law should be recorded or codified, it is certain that criminal punishments for acts such as “elopement” or “playing sex”–crimes that are nowhere precisely defined or written –violate the rights of the accused under international and domestic laws. The Ministry of Justice has recently chosen a strategy of “ascertaining” the customary laws of the numerous ethnic groups in South Sudan, yet this process is only beginning.[147] While studies have been done on customary law, and efforts have been made to document its application, there is still significant uncertainty of its content, leaving it very difficult for someone unfamiliar with the law of a particular ethnic group to know what the rules are or to predict how sanctions may be applied.

Other Procedural Violations

There are myriad other violations of procedural rights that occur in customary courts. As lawyers do not appear before these courts, the lack of access to defense counsel is as much a concern as it is in the formal system. In Aweil, Human Rights Watch interviewed two Ugandans and one Kenyan who complained of customary court proceedings being held in South Sudanese languages they were unable to understand, and with no translation.[148] Human Rights Watch met one man in Bentiu prison who said he never had any trial at all. While in police custody in November 2010, he said a chief simply came and showed him a judgment sentencing him to five years for murder and to pay compensation in cows.[149]

The story of a 13-year-old girl in Yei prison convicted for “moving at night” is illustrative of several problems with customary court proceedings. She explained that she ran away from home to visit her sister. She said of her trial: “The payam chief told me not to talk at the court, so I did not talk. They only listened to the accuser. No one spoke for me.” She was sentenced to prison for six months and to corporal punishment – “At the court, I was caned 10 times on the buttocks by a policeman.”[150]

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The administration of customary courts is contentious and has been debated within national ministries and the judiciary. This issue will require more discussion of how to insulate these courts from political interference, without eroding their cultural value and authority, and while continuing to recognize the flexible judicial and administrative functions often played by traditional chiefs. 

If customary courts are to continue hearing criminal cases, the government should urgently act to clarify their jurisdiction and sentencing powers and to provide customary court judges with additional training in the exercise of these functions. The government should also pass legislation that requires customary court proceedings and sanctions to comply with fair trial standards. The government should ensure that legal aid is available to defendants who appear before customary courts, especially if they desire to appeal convictions into the statutory system.